Protection of Freedoms Bill

Lord Marlesford Excerpts

Thursday 15th December 2011 Grand Committee

Moved by

[Lord Marlesford]

133: Clause 40, page 33, line 33, at end insert—
“( ) A further safeguard shall be that, unless explicitly provided for in the statute providing for the power of entry, all powers of entry shall be exercised by agreement with the premises owner or by warrant.”

[Lord Marlesford]

My Lords, in moving Amendment 133 I shall speak also to Amendment 134. Amendment 133 requires that powers of entry to premises already enshrined in the law or which are part of future legislation should be exercised by agreement or by warrant. Amendment 134 would allow the authority using the powers of entry enshrined in law to do so without agreement or warrant if the authority can demonstrate that,

“the aim of the use of the power would be frustrated if a warrant or agreement were sought”.

I shall of course give examples of how this amendment would apply.

I shall start from the historical perspective. For many centuries the rights of owners and occupiers of property have been argued over, disputed, defended and invaded. This all starts with Roman law, pre-Norman law, the Magna Carta and the Great Charter of Liberties and the Petition of Right, 1628, and goes right up to Article 8 of the European Convention on Human Rights, as the noble Baroness said.

Indeed, the protection of property rights, privacy and quiet enjoyment, whether of ownership, tenure or occupation, has come to be seen as an important aspect of a civilised and, ultimately, democratic society. It is therefore entirely appropriate that a Bill entitled Protection of Freedoms should have a part dealing with powers of entry. It does, indeed, form an ideal vehicle for us to discuss the ideas underlying my amendments, which do not in any way conflict with Clause 42 to which my noble friend the Minister has just referred.

We are all deeply indebted to my noble friend Lord Selsdon for all the work that he has done on this matter over many years. He has gathered it all together in a most scholarly volume, which he showed me yesterday. I doubt whether anyone knows more about this subject than he does. He is a wonderful example of the expertise—in this case, pretty esoteric perhaps—which resides in the House of Lords in its present form. He has uncovered an extraordinary number of pieces of legislation which allow virtually unfettered powers of entry to private premises for the officers or representatives of many different government and other bodies. These powers of entry have multiplied at an extraordinary rate. I think, at the latest count in his schedule, there are more than 1,200 of them. As my noble friend mentioned, there was an attempt in 1954 by the relatively young Lord Hailsham to deal with powers of entry, which I think related to the powers of electricity companies. I wish to quote a tiny bit from Hansard. Lord Hailsham said:

“For 200 years or thereabouts, the inhabitants of this country slept peacefully in their beds, in the supposition that the late John Wilkes had successfully established the proposition that their houses could not be entered without a warrant”.—[Official Report, 24/2/1954; col. 1127.]

The real paradox is that the sanctity of property has always been most vigorously protected by the fact that in this country in general the police have been required to obtain a warrant from a magistrate. I believe it is high time that the hitherto unchecked expansion of the right to enter property should be brought into line with the constraints to which the police are subject.

My Amendment 133 refers to entry by agreement. In almost every instance there is absolutely no reason why an entirely satisfactory arrangement should not be made between the property owner and the powers for whatever inspection may be necessary; and, indeed, it very often is. However, the fact remains that there is a feeling that the extent to which official busybodies are allowed to arrive unannounced and demand entry for whatever purpose they desire has aroused widespread and atavistic resentment, which itself generates a feeling of alienation from the state. That is something which any democratic Government should seek to counter. Indeed, my own party, the Conservative Party, gave specific undertakings in its manifesto which my noble friend has quoted. It is disappointing that so far we have not seen action, but this is a moment when action can be taken.

I recognise that there are cases where the whole purpose of the entry for inspection has to be an unannounced event. I refer to a couple of examples. The first and most obvious one is the everyday work of trading standards officers who need to enter premises such as shops and restaurants to look at the kitchens and make sure that hygiene and other standards of service are being met. Another group concerns those who inspect old people’s homes and other such premises. That is why I have included my Amendment 134 as a safeguard.

My noble friend Lord Phillips of Sudbury had hoped to speak to these amendments but he has had to go to another meeting, but he has asked me to say that he supports them. I very much hope that my noble friend the Minister will not only accept but welcome what I am trying to do. I shall of course be perfectly happy for him to tell me that he would wish to knock the wording into better shape, although I personally think it is pretty good, having been drafted by our admirable Public Bill Office to which we all owe such a debt of gratitude. I beg to move.

--- Later in debate ---

[Lord Henley]

I well understand what the noble Baroness is saying. As we all know, statute is not written in a language that most of us find that easy to understand—although I have no doubt the noble and learned Lord finds it easy to understand. Codes of conduct are obviously written in a manner that we hope will be understandable by all those who have to either make use of them or who will be affected by them. I am sure that as codes of conduct are drawn up, the strictures the noble Baroness has mentioned will be taken into account.

[Lord Marlesford]

My Lords, I thank the noble and learned Lord, Lord Scott, for his very powerful support, which I think the Government should take very considerable note of. The Minister gave no indication of any real sympathy with this. The examples he gave from the Defra thing of course are covered extremely well by my second amendment, which says quite clearly that where the purpose of the exercise of the power of entry would be in any way frustrated by having to get agreement, or even a warrant, that that could be justified under the present situation.

As the noble Earl, Lord Erroll, said, this is a very important subject, and he made some very useful points. We shall certainly return to it on Report. I believe that there will be widespread support on all sides of your Lordships’ House for what we are trying to do. If there is any chance of having constructive conversations with the Home Office—which I rather doubt—I would be happy to have such discussions. However, at the moment I absolutely reject the idea that this one-by-one study in any way replaces what I want, which is a much more constrained, sensible and proper use of powers of entry. Although in the mean time I have to withdraw the amendments, we shall be returning in full force to them on Report.

Amendment 133 withdrawn.